92 Decision Citation: BVA 92-04880
Y92
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
DOCKET NO. 90-52 131 ) DATE
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THE ISSUES
1. Entitlement to service connection for a left hip
disability secondary to service-connected chondromalacia of
both knees.
2. Whether there is new and material evidence to reopen a
claim for service connection for sinusitis.
3. Entitlement to an increased (compensable) rating for
chondromalacia of both knees.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
Richard F. Williams, Counsel
INTRODUCTION
This matter came before the Board of Veterans' Appeals
(hereinafter the Board) from a November 1988 decision of the
St. Petersburg, Florida, Regional Office (hereinafter RO).
The veteran had active service during the Vietnam era. The
notice of disagreement was received in March 1989. The
statement of the case was issued in April 1989. The
substantive appeal was received in September 1989. After
the case was docketed at the Board in February 1990, and
following a preliminary review of the record, the Board
remanded the case in June 1990 to the RO for further
development. The case was returned and docketed at the
Board in November 1990, but it was determined at that time
that the purpose of the June 1990 remand decision was not
entirely met. Accordingly, the case was remanded again to
the RO in March 1991. The purpose of the latter remand
decision was met, and the case was returned and docketed at
the Board in October 1991. The veteran has been represented
throughout his appeal by the Disabled American Veterans.
That organization submitted additional written argument in
January 1992, and the case is now ready for appellate
consideration.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends that his left hip disability began as a
result of his service-connected chondromalacia of both
knees. He further asserts that his sinusitis began during
service. He states that he received treatment for sinusitis
while on active duty and thereafter. The veteran also
contends that his service-connected chondromalacia of both
knees constitutes a compensable disability. He describes
severe symptoms, including pain. He indicates that the
service-connected disability at issue has resulted in
industrial impairment.
DECISION OF THE BOARD
For the reasons and bases hereinafter set forth, it is the
decision of the Board that the preponderance of the evidence
is against the claims for entitlement to service connection
for a left hip disability secondary to service-connected
chondromalacia of both knees and a compensable rating for
the veteran's bilateral knee disorder; new and material
evidence has not been presented to reopen a claim for
service connection for sinusitis.
FINDINGS OF FACT
1. There has been no demonstration of a causal relationship
between the veteran's left hip disability and his
service-connected chondromalacia of both knees.
2. An RO decision in February 1975, in part, denied
entitlement to service connection for sinusitis and was not
appealed in a timely manner thereafter.
3. Additional evidence submitted subsequent to the February
1975 RO decision does not show or tend to show that
sinusitis began during active service.
4. The veteran's bilateral chondromalacia is not manifested
by a limitation of function or disability.
CONCLUSIONS OF LAW
1. A left hip disability is not proximately due to or the
result of service-connected chondromalacia of both knees.
38 U.S.C. § 5107 (1991); 38 C.F.R. § 3.310(a) (1991).
2. Evidence received since an RO decision denied
entitlement to service connection for sinusitis in February
1975 is not new and material. 38 U.S.C. §§ 5107, 5108
(1991); 38 C.F.R. § 3.156(a) (1991).
3. The RO decision in February 1975 denying the veteran's
claim of entitlement to service connection for sinusitis is
final and is not reopened. 38 U.S.C. §§ 1110, 5107, 7105
(1991); 38 C.F.R. §§ 3.104(a), 3.156(a), 19.129(a) (1991).
4. The schedular criteria for a compensable rating for
chondromalacia of both knees have not been met. 38 U.S.C.
§§ 1155, 5107 (1991); 38 C.F.R. Part 4, Code 5257 (1991).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Board initially finds that the veteran has presented
well-grounded claims within the meaning of 38 U.S.C.
§ 5107(a). We are also satisfied that no further
development is warranted. The relevant evidence in this
appeal is summarized below.
The service medical records on file show that the veteran
was seen on numerous occasions from February to September
1974 for evaluation and treatment of sinusitis and for
bilateral knee symptoms, which were attributed to
chondromalacia patella. It was reported in the early part
of 1974 that X-rays of the sinuses had revealed persistent
clouding in the frontal, antral and maxillary sinuses. An
X-ray series of the sinuses in August 1974 showed no acute
or chronic inflammatory change. The veteran's separation
clinical evaluation was negative for any physical findings
indicative of sinusitis.
The veteran underwent a Department of Veterans Affairs (VA)
ear, nose and throat examination in December 1974. A
physical examination at that time was negative for any
pertinent abnormal findings. It was reported that X-rays
showed normal bilateral paranasal sinuses. The examiner
concluded that there was no actual evidence of sinus
disease. VA physical and X-ray examinations of the
veteran's knees, also performed in December 1974, were
reported as normal.
An RO decision in February 1975, in pertinent part, denied
entitlement to service connection for sinusitis on the basis
that this disorder was not confirmed following service. The
veteran was notified of this decision by letter in March
1975, but a notice of disagreement was not received within
the appropriate appeal period.
A VA ear, nose and throat examination and a sinus X-ray
series, performed in April 1979, were negative for any
findings indicative of sinusitis. An orthopedic examination
of the veteran performed at that time was also essentially
negative for any pertinent abnormal objective findings.
The veteran underwent a VA general medical examination in
November 1984. History obtained at that time included
frequent frontal headaches with nasal stuffiness and
discharge. Clinical findings included slight tenderness
over the frontal sinuses. X-rays of the paranasal sinuses
were normal. Clinical evaluation of the veteran's knees
remained essentially unchanged. Following an ear, nose and
throat examination, the diagnosis was recorded as "question
of allergic rhinitis sinusitis."
A VA X-ray examination of the veteran's lumbosacral spine,
performed in September 1987, showed that the left side of
the pelvis was approximately 2 centimeters higher than the
right. A moderate rotoscoliosis of the lumbar spine
convexed toward the right was also noted. The radiologist
observed that it was possible that the right leg was a
little shorter than the left. It was also noted that the
lumbosacral angle was increased and the line of weight
bearing fell anterior to the sacral promontory. The veteran
presented in a VA ear nose and throat clinic in September
1987 with a longstanding history of chronic sinusitis. He
was seen in a physical therapy clinic in September 1988 for
low back and left hip pain. Clinical evaluation revealed
some loss of motion in the left hip. Additional outpatient
clinical records show that he was evaluated by neurology in
1990 for left hip and leg complaints, including involuntary
spasms in the left lower extremity. An electromyogram in
August 1990 revealed findings compatible with mild
peripheral neuropathy of the left peroneal nerve and myopathy
The veteran underwent a VA neurology examination in April
1991. History obtained at that time included a pelvic
injury in an automobile accident, and a work-related left
leg injury in 1987. It was noted that, since the latter
injury, he had had pain and spasms in the left leg, along
with difficulty ambulating. Neurological examination was
normal. The examiner concluded that there was no evidence
of any significant neurological dysfunction.
The veteran underwent a VA orthopedic examination in April
1991. His complaints at that time included pain and
limitation of motion of both knees, especially on the left.
Clinical evaluation revealed obvious atrophy of the left
lower extremity, with circumference of the right midthigh
17 inches, compared to 15.5 inches on the left. Range of
motion of the knees was reported as 1 to 140 degrees,
bilaterally. There was some retropatellar crepitus on
motion of the left knee. The collateral and cruciate
ligaments were firm bilaterally. X-rays of the left hip and
both knees were reported as normal.
In reviewing the record, the Board finds no indication that
the veteran's left hip disorder, which was first
demonstrated many years after service, is causally related
to his service-connected chondromalacia of either knee. We
specifically note that there is no VA or private clinical
evidence on file, including a physician's statement or
opinion, which suggests the contended etiological
relationship. We parenthetically note that a VA radiologist
indicated in 1987 that the veteran may have a leg length
discrepancy as a result of (nonservice-connected)
rotoscoliosis of the lumbar spine. In any event, in the
absence of medical or radiographic evidence indicative of
the contended causal relationship, the Board finds that
service connection for a left hip disorder on a secondary
basis is not warranted.
The February 1975 RO decision which denied service
connection for sinusitis was based upon a finding that the
disability in question was not confirmed by post service
examination. The evidence submitted subsequent to that
decision includes an April 1979 VA ear, nose and throat
examination, which was negative for any pertinent abnormal
findings. The additional evidence also includes a VA
examination in November 1984, which found slight tenderness
over the veteran's frontal sinuses, but X-rays of the
paranasal sinuses at that time were reported as normal.
Subsequently dated outpatient clinic records note complaints
which can be attributed to sinusitis, but a firm diagnosis
of the disorder in question was not recorded. Even assuming
the presence of sinusitis in recent years, the Board finds
that the many years that have elapsed since the veteran's
negative separation examination make it difficult to
establish a causal relationship between the acute episodes
of sinusitis during service, which resolved with treatment,
and the veteran's more recent problems. In summary, the
Board finds that, given the fact that the medical
documentation in question merely suggests the possibility of
sinusitis, and considering the number of years that have
elapsed since service, the additional evidence is not new
and material within the mean of the applicable law and
regulations. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). It
follows that the February 1975 decision remains final and
the veteran's claim for service connection for sinusitis is
not reopened.
In reviewing the record, the Board finds no indication that
the veteran's service-connected bilateral chondromalacia
patella is manifested by any limitation of function. We
specifically note that a recent orthopedic examination
failed to demonstrate any limitation of motion or
instability of either joint. In reviewing the applicable
schedular rating criteria, 38 C.F.R. Part 4, Code 5257, we
find that a compensable rating for this disability is not
warranted.
The Board has considered the doctrine of reasonable doubt
and 38 C.F.R. § 4.7(1991), but the facts of record do not
provide an approximate balance of negative and positive
evidence on the merits, 38 U.S.C. § 5107(b), nor does the
evidence show that the actual manifestations of the
veteran's service-connected chondromalacia of both knees
more closely approximate those required for a 10 percent
rating than they do the noncompensable rating currently
assigned. Accordingly, we are unable to identify a
reasonable basis for a grant of the benefit sought on appeal.
ORDER
Service connection for a left hip disorder secondary to
service-connected chondromalacia of both knees is denied.
There having been no new and material evidence submitted to
reopen a claim for service connection for sinusitis, the
claim is not reopened.
An increased rating for chondromalacia of both knees is
denied.
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
JOHN J. CASTELLOT, SR., M.D. M. WOLOWITZ
ROBERT E. SULLIVAN
(CONTINUED ON NEXT PAGE)
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C. § 7266 (1991)
(formerly § 4066), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or
benefits, sought on appeal is appealable to the United
States Court of Veterans Appeals within 120 days from the
date of mailing of notice of the decision, provided that a
Notice of Disagreement concerning an issue which was before
the Board was filed with the agency of original jurisdiction
on or after November 18, 1988. Veterans' Judicial Review
Act, Pub. L. No. 100-687, § 402 (1988). The date which
appears on the face of this decision constitutes the date of
mailing and the copy of this decision which you have
received is your notice of the action taken on your appeal
by the Board of Veterans' Appeals.